Joseph Kelner, 98, Dies; Led Kent State Lawsuit

Joseph Kelner, a lawyer who took on the sitting governor of Ohio, a former university president and the National Guard in a suit on behalf of the student victims of the Kent State shootings in 1970, died on Monday in Manhasset, N.Y. He was 98.

The death was confirmed by his son Robert.

Mr. Kelner, who was president of both the New York State Trial Lawyers Association and the American Trial Lawyers Association, was a trial specialist who concentrated on personal injury and medical malpractice cases.

Mr. Kelner took on a number of notable clients, including, for a time, Bernhard H. Goetz, the so-called subway vigilante, who became a lightning rod in a national debate about crime, race and guns in December 1984 when he, a white man, shot four black teenagers who he claimed had tried to rob him in a subway car.

But even more significant was the Kent State case. On May 4, 1970, after a weekend of student rallies against the expansion of the Vietnam War into Cambodia — an R.O.T.C. building was set afire during the protests — National Guardsmen called to the campus by Gov. James A. Rhodes shot into a crowd of demonstrators, killing four students and wounding nine others.

An investigating commission found the shootings “unnecessary, unwarranted and inexcusable,” but public sentiment was with the Guard, and with Governor Rhodes, who, the night before the shootings, declared: “We are going to eradicate the problem. These people just move from one campus to another and terrorize the community. They are worse than the brownshirts and Communist element.”

Mr. Kelner was hired by the mother of Jeffrey Miller, a slain student who appeared in a widely reproduced photograph lying face down on the pavement with an anguished young woman kneeling over him. Mr. Kelner became chief counsel for the victims and their families in a civil suit that went to trial in 1975.

In federal court, a jury exonerated Governor Rhodes; Robert I. White, who had been president of Kent State at the time; and 27 National Guardsmen.

Mr. Kelner, who had accused the judge, Don J. Young, of suppression of evidence and other errors, said afterward, “This is a sad day in American justice.”

The verdict was reversed on appeal, and Ohio officials offered a settlement of $675,000, which was accepted by the plaintiffs against Mr. Kelner’s advice. He remained outraged by the shootings and the outcome of the case.

In 1980, Mr. Kelner was the co-author, with James Munves, of the book “The Kent State Coverup,” in which he alleged that “one governmental agency after another had managed to suppress evidence and shield those responsible for the shootings in a monumental cover-up.” He added, “The same process continued in the Cleveland courtroom.”

Image

Mr. Kelner in 1985, when he represented Bernhard Goetz.Credit...Fred Conrad/The New York Times

Joseph Kelner was born on June 12, 1914, in Des Moines. He grew up mostly in Detroit, where his father, Samuel, who died when Joseph was 10, and his mother, Rose, ran a dry goods store. His family moved to New York, and he earned bachelor’s and law degrees at New York University. He served in the Army Counter Intelligence Corps in World War II.

In the 1950s Mr. Kelner started his own firm, which became Kelner & Kelner in the 1970s when his son Robert joined it.

Mr. Kelner represented Mr. Goetz as his chief lawyer in a civil suit brought by the four victims in the subway shooting. (Mr. Goetz was convicted of illegal gun possession in the criminal case.) But Mr. Kelner eventually dropped him as a client because, he said, Mr. Goetz was uncooperative and had not paid him.

Mr. Kelner’s other notable clients included two professional umpires, Al Salerno and Bill Valentine, who were fired in 1968 by Joe Cronin, then the American League president, on grounds of incompetence. But Mr. Cronin’s probable motivation, it was widely believed, was that the umpires were involved in organizing the league umpires into a union.

Mr. Salerno and Mr. Valentine hired Mr. Kelner and sued the American League and Major League Baseball. In a proposed settlement in 1970, they were offered their jobs back with back pay — the union that had been formed without them had negotiated raises — but Mr. Salerno rejected a stipulation that he and Mr. Valentine first had to polish their skills in the minor leagues. The deal fell through, and the two never umpired in the major leagues again.

Mr. Kelner also represented people whose homes had been mistakenly broken into by the police in drug raids. He won a six-figure verdict for the family of a girl whose brain injuries had been caused by hospital negligence. He won a $280,000 verdict for a boy who had been shot in the head by another boy; the award included punitive damages against the parents of the boy who fired the gun for not exerting proper parental control.

Mr. Kelner was the author of “Successful Litigation Techniques,” a series of guides for trial lawyers and students, and the co-author, with his son Robert, of “Trial Practices.” He also wrote a column for The New York Law Journal.

Mr. Kelner’s wife, the former Elizabeth Schneier, died in 2004. In addition to his son Robert, he is survived by another son, Kenneth, and two grandsons.

In 1970, after the Kent State shootings, The New York Times published a letter written by a Mississippi doctor to his college student son in which he defended the National Guardsmen and said the demonstrators had gotten what they deserved. The letter ran as an Op-Ed page article.

Mr. Kelner responded with fervor in an article on the Op-Ed page under the headline “An Answer to the Mississippi Doctor.”

“We, the older generation, have much to answer for,” he wrote. “We have allowed our country to decay and deteriorate. We were too permissive of our own government. We stood by passively while our elected officials inched us into the bottomless pit of Vietnam. While our land, water and air were polluted and fouled for decades by profit-hungry industry, we were reticent and compliant, each of us devoting our energies to the pursuit of happiness and material gain in the Horatio Alger tradition. The college kids simply cannot see us spending hundreds of billions on Vietnams and ABMs while our cities rot and people are hungry. They see our priorities aborted and our principles perverted to favor a military-industrial complex.